How to Select an Attorney-In-Fact

Who is an Attorney-In-Fact?

One of the more important decisions an individual will have to make is the choice of who they will choose to represent their interests in certain fiduciary matters that they cannot act upon themselves. When it comes to planning end of life wishes or dealing with important business and personal items that must be addressed while an individual is incapacitated or absent, the person chosen to be the attorney-in-fact is a critical decision.

The attorney-in-fact is the person who is named in the durable power of attorney form to be responsible for managing the financial and legal affairs of the principal when called upon to do so. The attorney-in-fact will be given the power to act on the principal's behalf just as if it was the principal that was making the decisions. Because of this enormous responsibility and trust that is placed in their hands, the person who is chosen as an attorney-in-fact must have certain characteristics in order to be considered.

A power of attorney template or POA form can be used to nominate a power of attorney to represent an individual and their affairs in several different areas should they become incapacitated.

Making a Choice About a Power of Attorney

One of the most important considerations is knowing and trusting the individual. They are generally either a relative or a close friend that has proven trustworthy in the past and is someone the principal feels comfortable with. While this is a fairly common occurrence and many people name close associations in their durable power of attorney form, it might not always be the best choice.

A second consideration is that the person they are appointing is of a proper age to act responsibly on their behalf and that person should reside fairly close by in order to avoid having to frequently travel great distances to conduct the principal’s affairs.

A third consideration is how involved the potential person is in their own lives. Does the attorney-in-fact have a career that forces a hectic schedule on them or do they frequently travel for business? If so, it might not be possible for them to properly administer the principal's affairs.

Perhaps the most important considerations, other than how trustworthy the individual is, are how much experience they have and how good they are at managing financial affairs.

An attorney-in-fact needs to be able to effectively organize and conduct financial and legal transactions in an orderly and proficient manner. If the attorney-in-fact does not manage their own personal affairs in a proper fashion, they will not be a good choice to manage the affairs of the principal. Likewise, a person who has banking or financial experience or is always in control of their own finances would more than likely make a fine attorney-in-fact.

The final consideration is the level of responsibility the attorney-in-fact will have to adhere to. It might be fine to have a trusted aunt or nephew act as an attorney-in-fact if they are merely watching over simple household affairs while the principal is undergoing a stay at the hospital or facing some other temporary incapacitation.

However, these individuals might not be able to handle the affairs of a large and elaborate estate or a complicated financial or legal enterprise while the principal is out of the country. When the level of responsibility exceeds the ability of the individual, it might be in the principal's best interest to seek professional assistance in maintaining their affairs. In this case, it might be best to appoint a licensed attorney with solid references to act as their attorney-in-fact.